Monthly Archives: August 2016

Expansion of I-601A Provisional Unlawful Presence Waiver: What Changed?

The final rule expanding the I-601A Provisional Unlawful Presence Waiver to all statutorily eligible applicants went into effect on August 29, 2016.  It allows more immigrant visa applicants, who are in the U.S., to seek the unlawful presence waiver before they depart for their visa interview abroad.

Published on July 29, 2016, the final rule is meant to encourage unlawfully present persons (who are ineligible for adjustment of status) to leave the U.S., attend their immigrant visa interviews, and return legally to the U.S. as permanent residents.

What Changed Under the 2016 Final Rule? 

The final rule expanding the I-601 Provisional Unlawful Presence Waiver resulted in several changes that promote family unity and streamline the immigrant visa and waiver application process.

1. The I-601A Provisional Unlawful Presence Waiver is Available to All Statutorily Eligible Immigrant Visa Applicants

The 2013 regulation extended the Provisional Unlawful Presence Waiver only to spouses, minor children (under age 21 or CSPA-eligible ), and parents of U.S. citizens. Under the 2016 regulation at 8 CFR 212.7(e), the pool of eligible applicants is no longer limited to immediate relatives of U.S. citizens.

Under the 2016 final rule, all beneficiaries of family-sponsored and employment-based immigrant visa petitions, as well as Diversity Visa Lottery selectees, who are eligible for an immigrant visa may seek the I-601A waiver – as long as they meet the statutory requirements under INA section 212(a)(9)(B)(v). The statute requires you (a) have a qualifying relative (i.e. U.S. citizen or permanent resident spouse or parent) who will suffer extreme hardship if you are not admitted to the U.S., and (b) deserve the waiver in the favorable exercise of discretion.

2.There is No Time Restriction Based on the Date the Department of State’s Acted to Schedule the Immigrant Visa Interview 

In the proposed rule, the Department of Homeland Security (DHS) sought to keep the time restrictions preventing immediate relatives of U.S. citizens from applying for the I-601A waiver if the DOS acted before January 3, 2013 to schedule their immigrant visa interview –  even if they failed to appear for the interview, the interview was cancelled, or the interview was rescheduled on or after January 3, 2013.

The proposed 2016 rule would have made other applicants ineligible if DOS initially acted before the effective date of the final rule to schedule their immigrant visa interviews.  I-601A waiver applications subject to the time bar would have been rejected or denied.

In the final rule, the DHS removed the restrictions based on the date that DOS acted to schedule the immigrant visa interview. There is no more visa interview scheduling cut-off dates.

Immigrant visa applicants who were previously subject to the January 3, 2013 cut-off date may now apply for the I-601A waiver, as long as they did not depart the U.S. If their visa case was terminated due to inaction of one year or more, they may ask the DOS to reinstate their visa application or the petitioner may file a new immigrant visa petition for them.

3. Reason-to-Believe Standard, as a Basis for Ineligibility, No Longer Exists

Under the 2013 rule, you were ineligible for the I-601A waiver if USCIS determined, based on the record, there is reason to believe you are inadmissible on grounds other than unlawful presence, such as immigration fraud, illegal re-entries, and criminal convictions. DHS had initially applied the reason-to-believe standard because it would be of little benefit to grant provisional waivers to applicants who would eventually be denied immigrant visas based on other grounds of inadmissibility.

Based on comments received during the notice-and-comment rulemaking process, DHS determined the reason-to-believe standard created confusion among applicants.

It is DOS, and not USCIS, that generally determines whether the immigrant visa applicant is admissible, which includes an in-depth, in-person interview conducted by DOS consular officers. It is U.S. Customs and Border Protection (CBP), and not USCIS, that determines admissibility at the time the person seeks admission at a port of entry.

In the 2016 rule, DHS noted, “Any assessment by USCIS with respect to other grounds of inadmissibility would be, at best, advisory in nature and would likely cause even greater confusion for applicants.” Therefore, to avoid further confusion, the 2016 rule removes the reason-to-believe standard as a basis for denying provisional waiver applications.

When adjudicating I-601A waiver applications, USCIS will only consider whether you have shown extreme hardship to the qualifying relative if you are not admitted to the U.S., and whether you deserve the waiver as a matter of discretion. USCIS will no longer deny provisional waivers because it has a reason to believe you are subject to inadmissibility grounds other than the 3/10 year unlawful presence bar.

4. Individuals Subject to Final Orders of Removal, Deportation, or Exclusion May Apply for the Provisional Waiver if Certain Conditions are Met

The 2013 rule prohibited persons subject to final orders of removal,  deportation or exclusion to apply for the I-601A waiver. Persons who depart the U.S. due to a removal, deportation or exclusion order are barred from re-entry for a period of 5 to 20 years under INA section 212(a)(9)(A). These include persons with an expedited removal order by CBP at the port of entry (5-year bar) and a final removal order by an Immigration Judge in removal proceedings (10-year bar).

Certain persons, however, may seek consent to reapply for admission to the United States before the 5 to 20-year period expires, by filing a Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal. If you were ordered removed and are inadmissible under INA 212(a)(9)(A), but have yet to leave the U.S. and will apply for an immigrant visa abroad, you may file the Form I-212 before your departure.

The 2016 rule allows individuals with final orders of removal,  deportation or exclusion to apply for the I-601A waiver, provided they already filed the Form I-212 and USCIS conditionally approved it.

If you obtain a conditional I-212 approval while in the U.S. and thereafter depart to attend your immigrant visa interview abroad, you are generally no longer inadmissible under INA section 212(a)(9)(A) and can be issued an immigrant visa.  The I-212 approval is conditioned on your actually departing the U.S.

In this situation, consent to reapply for admission refers only to inadmissibility under INA section 212(a)(9)(A). You cannot file an I-212 application while you are in the U.S. if you are inadmissible under INA section 212(a)(9)(C), i.e. illegal re-entry or attempted illegal re-entry after you accrued more than one year of unlawful presence in the U.S. and left, or after you were ordered removed from the U.S.

The I-601A addresses the unlawful presence bar, while the I-212 deals with the removal order. Each waiver covers separate grounds of inadmissibility and has different eligibility requirements. USCIS will deny a provisional waiver request if your Form I-212 application has not yet been conditionally approved at the time the Form I-601A is filed.

In the final rule, DHS further clarified that USCIS has exclusive jurisdiction to adjudicate I-601A waiver applications, regardless of whether the applicant is or was in removal, deportation, or exclusion proceedings.

The DHS also clarified which persons are ineligible for provisional waivers because they are subject to a reinstatement of a prior removal, deportation or exclusion order. The CBP or Immigration & Customs Enforcement (ICE) must first serve notice and actually reinstate the order, prior to the filing of the I-601A application or while the application is pending, for the person to be ineligible for the provisional waiver under the 2016 rule.

5. Individuals Who Violated a Voluntary Departure Order Might Be Eligible for the Provisional Waiver

The 2016 regulations do not specifically mention voluntary departure as a bar to a provisional waiver. The Supplementary Information to the final rule discusses this issue, but creates more questions than provides answers.

If a person is granted voluntary departure while in removal proceedings, the immigration judge is required to enter an alternate removal order. DHS may not carry out the alternate removal order while the voluntary departure period is in effect. But if the person fails to voluntarily depart on time, the alternate removal order automatically kicks in. Under current law, removal proceedings for such persons are considered to have ended when the grant of voluntary departure, with an alternate removal order, becomes administratively final.

The regulation at 8 CFR §212.7(e)(4)(iii) bars individuals who are “in removal proceedings, in which no final order has been entered, unless the removal proceedings are administratively closed and have not been recalendared at the time of filing the application….” No doubt, a person who is granted voluntary departure is ineligible for an I-601A waiver while the voluntary departure period is still in effect.

The Supplementary Information to the final rule states, “DHS has determined that individuals granted voluntary departure will not be eligible for provisional waivers.” The DHS reasoned that allowing a person whose voluntary departure period has not expired to apply for a provisional waiver would suggest the person is excused from leaving the U.S. within the voluntary departure period. The Supplementary Information also states, “an individual who fails to leave as required under a grant of voluntary departure will have an administratively final order of removal, and will thus be ineligible for a provisional waiver.”

The Supplementary Information, however, cites to the new regulation at  8 CFR §212.7(e)(4)(iv), which took effect on August 29, 2016. This regulation reads:

… an alien is ineligible for a provisional unlawful presence waiver … if: (iv) [t]he alien is subject to an administratively final order of removal, deportation, or exclusion under any provision of law … unless the alien has already filed and USCIS has already granted … an application for consent to reapply for admission under section 212(a)(9)(A)(iii) of the Act and 8 CFR 212.2(j).

The 2016 regulation shows an exception to the final order bar if you first obtain an approved I-212.

Until there is further clarity on this issue, persons who have overstayed a voluntary departure period, and are subject to a final order, must exercise caution in applying for an I-601A waiver based on a conditionally approved I-212. If you are still in removal proceedings, the better course it to request administrative closure to pursue a provisional waiver. Assuming the I-601A waiver is granted, you may then file a motion to recalendar and request termination of proceedings so you may apply for an immigrant visa abroad.

More Key Things to Know

What stayed the same under the 2016 final rule?

Although the 2016 rule expands the provisional unlawful presence waiver, it kept many of the provisions under the 2013 regulation.

For more information, read Expansion of I-601A Provisional Unlawful Presence Waiver: What Stayed the Same? 

When is the 3/10 year bar triggered?

As of April 1, 1997, if you accrue unlawful presence in the U.S. of more than 180 days to less than 1 year, after age 18, you are barred from re-entering the U.S. for 3 years. The bar to re-entry is 10 years if the unlawful presence lasted 1 year or more. When you do not qualify for adjustment to permanent resident status, and must leave the U.S. for consular processing, you trigger the 3/10-year unlawful presence bar under INA section 212(a)(9)(B)(i), upon departure.

The 3/10 year bar is triggered only if you leave  the U.S. You do not need an unlawful presence waiver if you are in the U.S. and applying for adjustment to permanent resident status. If you are in the U.S. and are eligible for adjustment, you should avoid leaving the U.S. for consular processing of the immigrant visa, which will trigger the 3/10 year unlawful presence bar.

For more information, read When do you need an I-601 waiver due to unlawful presence (and how do you get it)? 

Why apply for the I-601A provisional unlawful presence waiver instead of the regular I-601 waiver?

An I-601A waiver grant gives some assurance the U.S. Consulate will excuse you from the 3/10 year bar and issue the immigrant visa. Prior to March 2013, when the I-601A waiver was first introduced under the Obama Administration, every immigrant visa applicant who was subject to the 3/10 year bar had to wait outside the U.S. to get the regular I-601 waiver, after they attended the visa interview. When the I-601 process is delayed or the application is denied, long-term family separation, job loss, and other hardships result.

If you are subject to the 3/10 year bar only, and no other grounds of inadmissibility, and you are still in the U.S., the I-601A waiver is all you need.  The I-601A process allows you to apply for the unlawful presence waiver before you leave the U.S. Your immigrant visa interview will be scheduled at the U.S. Consulate only after USCIS adjudicates the I-601A waiver application. In contrast, you may file for the regular I-601 waiver only after you have left the U.S. and attended your visa interview.

The regular I-601 waiver process requires you to wait several months or even years outside the U.S. for a decision.  On the other hand, an approved I-601A waiver application facilitates the grant of the immigrant visa and shortens the time you are separated from your U.S. citizen or permanent resident family members. With an I-601A waiver granted, you normally wait about 2 weeks for the immigrant visa to be processed.

For more information, read I-601 waiver or I-601A waiver for unlawful presence? 

Seek Help from an Experienced Immigration Attorney

Seek advice from an experienced immigration attorney to confirm whether you are inadmissible due to unlawful presence and/or other grounds, verify your eligibility for the I-601A waiver, guide you on the forms and documents to submit, and help you prepare a strong waiver application for approval.

Even when you have an I-601A waiver, the U.S. Consulate may still your immigrant visa if it finds you are inadmissible on multiple grounds. But if the 3/10 year unlawful presence bar is your only inadmissibility ground, the I-601A approval means you can expect an immigrant visa grant.

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: theblueiris

Expansion of I-601A Provisional Unlawful Presence Waiver: What Stayed the Same?

On August 29, 2016, USCIS began accepting I-601A Provisional Unlawful Presence Waiver applications under the 2016 final rule expanding the pool of applicants eligible for the provisional waiver.

The I-601A waiver is no longer limited to just immediate relatives of U.S. citizens. Qualified applicants now include beneficiaries of all family-sponsored and employment-based immigrant visa petitions, as well as Diversity Visa Lottery selectees, who are eligible for an immigrant visa and who meet the legal requirements for a waiver under INA section 212(a)(9)(B)(v).

What Stayed the Same Under the 2016 Final Rule?

The final rule expanding the I-601 Provisional Unlawful Presence Waiver resulted in several changes that promote family unity and streamline the immigrant visa and waiver application process. Despite significant changes under the 2016 regulation, many things stayed the same.

1. I-601A Waiver Applicants Must Still Have a Qualifying Relative Who Will Suffer Extreme Hardship if They are Not Admitted to the U.S.

The Department of Homeland Security (DHS) can only expand the I-601A waiver to those who fall within the current immigrant visa categories and who meet the requirements for the unlawful presence waiver described in INA section 212(a)(9)(B)(v). The statute, passed by Congress, requires you to have a qualifying relative who will suffer extreme hardship if you are not admitted to the U.S. It further defines a qualifying relative as a U.S. citizen or permanent resident spouse or parent. In addition to meeting the extreme hardship requirement, you also must warrant a favorable exercise of discretion.

Immigrant visa applicants in any family-based or employment-based category, plus Diversity Visa applicants, may file for the I-601A waiver only if they have a U.S. citizen or permanent resident spouse or parent who will suffer extreme hardship if they are not granted the visa.

Congress, not DHS, has authority to change the statutory requirement. USCIS also cannot grant an I-601A waiver if you have not demonstrated extreme hardship to a qualifying relative as required by statute.  USCIS may also deny provisional waiver applications, as a matter of discretion, even when you are eligible for the relief.

USCIS will continue to make extreme hardship determinations on a case-by-case basis, consistent with agency guidance. On October 7, 2015, USCIS posted proposed guidance on extreme hardship determinations for public comment on its Website. USCIS continues to train its officers on provisional waiver adjudication, including the extreme hardship determination.

2. Removal of the DOS Visa Interview Scheduling Cut-Off Dates Does not Alter Other Laws or Regulations Relating to Visa Availability

In the final rule, DHS removed the date restrictions preventing  immediate relatives of U.S. citizens from obtaining provisional waivers if the Department of State (DOS) acted prior to January 3, 2013 to schedule their immigrant visa interviews. DHS also rejected a proposed rule making other applicants ineligible for provisional waivers if DOS had acted on or before the effective date of the final rule to schedule the immigrant visa interview.

Although there is no DOS visa interview scheduling cut-off date, I-601A waiver applicants still cannot obtain an immigrant visa unless their priority date is current or they are in the immediate relatives category. The I-601A cannot be filed until you (a) first pay the immigrant visa fee, which may be submitted only when an immigrant visa is available, or (b) you have been assigned a Diversity Visa case number and are waiting for a visa interview.

3. The Waiver, By Itself, Provides No Interim Benefits or Immigration Benefits 

The filing of an I-601A waiver, or the approval of such an application, still does not provide any basis for receiving interim benefits, including employment authorization in the U.S. or an advance parole/travel document to re-enter the U.S.

The DHS pointed out that because an approved immigrant visa petition and a waiver of inadmissibility do not, by themselves, grant any immigration status or lawful presence in the U.S., they do not serve as a basis for interim benefits. The DHS further noted that granting interim benefits to persons with provisional waivers could encourage them to postpone their timely departures from the U.S. to apply for their immigrant visa.

The provisional waiver process is meant to encourage the applicant to depart the U.S. for their immigrant visa interview and apply for an immigrant visa at the U.S. Consulate. The purpose is not to extend an applicant’s unlawful presence in the United States.

4. The Provisional Waiver Excuses Unlawful Presence Only, and No Other Grounds of Inadmissibility

The I-601A waiver excuses you from the 3/10-year unlawful presence bar only. The DHS did not extend the I-601A process to waive other inadmissibility grounds, such as fraud or wilful misrepresentation of material fact to gain immigration benefits, criminal convictions, or medical issues.

The DHS also did not expand the provisional waiver to persons who are inadmissible based on illegal re-entry or attempted illegal re-entry after previous immigration violations under INA section 212(a)(9)(C)(i). The person must have an approved Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal, to overcome this ground of inadmissibility.

If during the immigrant visa interview the consular officer finds you are inadmissible on other grounds that have not been waived, such as prior removal orders, criminal convictions, and immigration fraud, the approved provisional waiver will be automatically revoked. Revocation of the provisional waiver does not prevent you from filing a regular I-601 application for waiver of unlawful presence plus other other waivable grounds of inadmissibility.

5. Individuals in Active Removal Proceedings May Not Apply for or Receive the Provisional Waiver Unless Their Case is Administratively Closed

Immigration & Customs Enforcement (ICE) may agree to administratively close removal proceedings for individuals who are eligible for a provisional waiver and are a low priority for removal.  ICE also works to facilitate, when appropriate, the timely termination or dismissal of administratively closed removal proceedings once USCIS approves a provisional waiver.

Under the 2013 regulations, persons in removal proceedings may apply for and be granted provisional waivers only if their removal proceedings have been and remain administratively closed. DHS kept this restriction in the 2016 final rule.

6. Individuals Subject to a Reinstated Removal, Deportation or Exclusion Order Do Not Qualify for the Provisional Waiver

A person who illegally reenters the U.S. after having been removed, or having departed voluntarily, while under an order of exclusion, deportation, or removal shall be removed from the U.S. by reinstatement of the prior order. The person has no right to a hearing before an immigration judge in such circumstances.

In the final rule, the DHS confirmed that persons with a reinstated prior removal, deportation or exclusion order are ineligible for the provisional waiver. Customs & Border Protection (CBP) or ICE must first serve notice and actually reinstate the order, prior to the filing of the I-601A application or while the application is pending, for the person to be ineligible for the provisional waiver under the 2016 rule.

7. Individuals Granted Voluntary Departure Are Ineligible for a Provisional Waiver While the Voluntary Departure Period is in Effect

If you were granted voluntary departure in lieu of a removal order, you are ineligible for a provisional waiver while the voluntary departure period is still in effect.

The immigration judge is required to enter an alternate removal order when voluntary departure is granted. DHS may not execute the alternate removal order while the voluntary departure period is in effect. But if the person fails to voluntarily depart on time, the alternate removal order automatically kicks in. Under current law, removal proceedings for such persons are considered to have ended when the grant of voluntary departure, with an alternate removal order, becomes administratively final.

The regulation at 8 CFR §212.7(e)(4)(iii) bars individuals who are “in removal proceedings, in which no final order has been entered, unless the removal proceedings are administratively closed and have not been recalendared at the time of filing the application….” Thus, an individual with a voluntary departure order that has not yet expired is ineligible for a provisional waiver.

In the Supplemental Information to the 2016 rule, the DHS states:

Allowing an individual whose voluntary departure period has not expired to apply for a provisional waiver would suggest that the individual is excused from complying with the order of voluntary departure. This result would contradict the purpose of voluntary departure — allowing the subject to leave promptly without incurring the future inadmissibility that results from removal. For these reasons, DHS did not modify the rule to allow those with grants of voluntary departure to apply for provisional waivers.

Whether a person who overstays the voluntary departure period, thus triggering a final removal order, may apply for a provisional waiver is another issue.  A strict reading of the 2016 regulations at 8 CFR §212.7(e)(4)(iv) indicates persons with a final removal order bar may seek an I-601A waiver if they first receive a conditionally approved I-212 (permission to reapply for admission into the United States after deportation or removal).

Until there is further clarity on this issue, persons who have overstayed a voluntary departure period, and are subject to a final order, must exercise caution in applying for an I-601A waiver based on a conditionally approved I-212. If you are still in removal proceedings, the better course it to request administrative closure to pursue a provisional waiver. Assuming the I-601A waiver is granted, you may then file a motion to recalendar and request termination of proceedings so you may apply for an immigrant visa abroad.

More Key Things to Know

What changed under the 2016 final rule?

Although the 2016 rule kept many of the provisions under the 2013 regulation, it expands the provisional unlawful presence waiver and introduced several changes.

For more information, read Expansion of I-601A Provisional Unlawful Presence Waiver: What Changed? 

When is the 3/10 year bar triggered?

If you accrue unlawful presence in the U.S. of more than 180 days to less than 1 year, you are barred from re-entering the U.S. for 3 years. The bar to re-entry is 10 years if the unlawful presence lasted 1 year or more. When you do not qualify for adjustment to permanent resident status, and must leave the U.S. for consular processing, you trigger the 3/10-year unlawful presence bar under INA section 212(a)(9)(B)(i), upon departure.

The 3/10 year bar is triggered only if you leave  the U.S. You do not need an unlawful presence waiver if you are in the U.S. and applying for adjustment to permanent resident status. If you are in the U.S. and are eligible for adjustment, you should avoid leaving the U.S. for consular processing of the immigrant visa, which will trigger the 3/10 year unlawful presence bar.

For more information, read When do you need an I-601 waiver due to unlawful presence (and how do you get it)? 

Why apply for the I-601A provisional unlawful presence waiver instead of the regular I-601 waiver?

An I-601A waiver grant gives some assurance the U.S. Consulate will excuse you from the 3/10 year bar and issue the immigrant visa. Prior to March 2013, when the I-601A waiver was first introduced under the Obama Administration, every immigrant visa applicant who was subject to the 3/10 year bar had to wait outside the U.S. to get the regular I-601 waiver, after they attended the visa interview. When the I-601 process is delayed or the application is denied, long-term family separation, job loss, and other hardships result.

If you are subject to the 3/10 year bar only, and no other grounds of inadmissibility, and you are still in the U.S., the I-601A waiver is all you need.  The I-601A process allows you to apply for the unlawful presence waiver before you leave the U.S. Your immigrant visa interview will be scheduled at the U.S. Consulate only after USCIS adjudicates the I-601A waiver application. In contrast, you may file for the regular I-601 waiver only after you have left the U.S. and attended your visa interview.

The regular I-601 waiver process requires you to wait several months or even years outside the U.S. for a decision.  On the other hand, an approved I-601A waiver application facilitates the grant of the immigrant visa and shortens the time you are separated from your U.S. citizen or permanent resident family members. With an I-601A waiver granted, you normally wait about 2 weeks for the immigrant visa to be processed.

For more information, read I-601 waiver or I-601A waiver for unlawful presence? 

Seek Help from an Experienced Immigration Attorney

Seek advice from an experienced immigration attorney to confirm whether you are inadmissible due to unlawful presence and/or other grounds, verify your eligibility for the I-601A waiver, guide you on the forms and documents to submit, and help you prepare a strong waiver application for approval.

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

SUBSCRIBE           CONTACT

Photo by: Luis Sarabia

What Triggers a Notice of Intent to Revoke an I-130 or I-129F Petition and What Can You Do About It?

popped balloonWhen USCIS finds that it approved an I-130 (immigrant visa) or I-129F (K-1 visa) petition in error, it will issue a Notice of Intent to Revoke (NOIR) to the petitioner. A NOIR is a letter to the petitioner fully explaining why USCIS intends to revoke a previously approved petition. Typically, the petitioner has 30 days to respond to the allegations and present additional information or evidence before USCIS decides whether to revoke or reaffirm the petition approval.

What Factors Usually Trigger a Notice of Intent to Revoke? 

In marriage-based green card cases, the two most common factors that trigger a revocation notice are:

USCIS Discovers Prior Marriage Fraud Determination

A common reason for a NOIR is when USCIS overlooked a prior marriage fraud determination that prevents the approval of a subsequent petition for the same beneficiary.

Section 204(c) of the Immigration & Nationality Act states that no visa petition may be approved if the beneficiary was previously accorded, or sought to be accorded, an immediate relative or preference status as the spouse of a U.S. citizen or permanent resident, by reason of a marriage determined by USCIS to have been entered into for evading immigration laws (i.e. a sham marriage for immigration benefits).

It is not enough for the Consulate to have denied a prior immigrant visa or K-1 visa based on suspicion of a sham relationship. Rather, for section 204(c) to apply, USCIS must make an independent conclusion that the prior marriage was fraudulent.

If USCIS later discovers it should have denied the petition under section 204(c), due to an official determination of prior marriage fraud, it may issue a NOIR.

U.S Consulate Finds Lack of Evidence Showing Bona Fide Marriage

Although the U.S. Consulate has no authority to revoke a petition, it has the final say in whether to grant you an immigrant visa or K-1 visa to enter the United States. The doctrine of consular nonreviewability severely limits judicial or administrative review of a consular officer’s visa denial.

Furthermore, a consular officer who has doubts about the bona fide nature of the relationship between the petitioner and visa applicant, or observes material discrepancies in the record, may return the petition to USCIS for possible revocation.

At the immigrant visa or K-1 visa interview, the consular officer may question the visa applicant and conduct its own investigation. It may also require additional documentary evidence of the relationship, even though USCIS has already approved the petition.

If you do not communicate well, submit insufficient documents, or provide answers that cause the Consulate to doubt the bona fide nature of your relationship to the petitioner, this could lead to a NOIR citing lack of evidence to keep the petition approval. If you raise issues that conflict with the existing record, this could lead to a NOIR citing fraud or willful misrepresentation to gain immigration benefits.

Because the Consulate has no authority to re-adjudicate the petition, it must support the return of the petition with factual and concrete reasons that USCIS did not fully consider.

The Consulate should seek revocation only if the consular officer knows, or has reason to believe, that the petition approval was obtained through fraud, misrepresentation or other unlawful means, or that the visa applicant is not entitled to the benefits sought in the petition.  Generally, Consulates are instructed to not return the petition unless it discovers new information or evidence not known to USCIS at the time of approval.

What Can You Do to Avoid or Overcome a Notice of Intent to Revoke? 

In marriage-based green card cases, the documentary evidence and testimony you present is essential to getting and keeping a petition approval. You cannot obtain an immigrant visa, a K-1 visa, or adjustment to permanent resident status without an underlying petition approval.

Avoiding a Notice of Intent to Revoke starts with filing a strong petition with USCIS and preparing thoroughly for the visa interview at the U.S. Consulate. Overcoming a Notice of Intent to Revoke lies in submitting a timely and convincing response to USCIS.

The key stages to exercise caution and seek sound advice from an experienced immigration attorney are:

Filing the Petition

USCIS approves an I-130 for a spouse and an I-129F for a fiancé(e) only when it is convinced the couple more likely than not shares a bona fide relationship, i.e. a marriage or engagement based on mutual intent to establish a life together, and not just for immigration benefits.

In support of the petition, the couple may present documentary evidence such as email correspondences, telephone records, stamped passport pages, travel itineraries, hotel receipts, photos of the two of them together, and affidavits from relatives and friends demonstrating they have a bona fide relationship.

When reviewing a stand-alone I-130 or I-129F petition, USCIS does not interview the petitioner or beneficiary, or conduct independent investigation, but generally relies on the documentary evidence submitted with the petition.

USCIS will issue a Request for Evidence (RFE) if initial evidence is missing. USCIS will issue a Notice of Intent to Deny (NOID) if initial evidence is mostly present, but: (a) the filing does not appear to establish eligibility by the preponderance of the evidence; (b) the case appears to be ineligible for approval but not necessarily incurable; or (c) the adjudicator intends to rely for denial on evidence not submitted by the petitioner.

Even when USCIS approves the petition, it may later issue a Notice of Intent to Revoke at any time before the immigrant visa or adjustment of status is granted. If the petition did not contain much evidence of a bona fide relationship or eligibility for the benefit sought, it’s a lot easier for USCIS to revoke the petition approval.

Obtaining guidance from an attorney on the appropriate forms and supporting evidence to submit is essential to getting a petition approval and avoiding a NOIR.

Attending the Visa Interview

In many cases, revocation proceedings are initiated by consular officers who suspect the couple do not share a real relationship. Consular officers often rely on their opinions about the nature of a genuine relationship, in light of cultural norms, local customs, and other factors.  In turn, USCIS may depend on the findings of a consular officer who has interviewed the visa applicant, verified documentary evidence, and performed investigation abroad.

Do not take the petition approval for granted or treat the visa interview as just a formality. The doctrine of consular nonreviewability severely limits administrative or judicial review of consular decisions. The visa applicant (beneficiary of the petition) must prepare fully for the visa interview, respond consistently, truthfully and appropriately to questions, and provide any requested or missing documents.

Having counsel prepare you for the visa interview, including questions and concerns that are likely to be raised by the consular officer, is critical.

Responding to a NOIR

Even couples who share a bona fide relationship can end up with a Notice of Intent to Revoke. If USCIS issues a NOIR, it means it found good and sufficient cause to revoke the petition approval. When responding to a NOIR, it’s important to rebut each and every issue raised, including allegations against the bona fide nature of the relationship.

USCIS must provide derogatory information unknown to the petitioner or applicant in the NOIR. The petitioner typically has 30 days to respond to the allegations and present additional information or evidence before USCIS makes a decision.

Due to the time constraints, multiple issues raised in the NOIR, and the petitioner’s lack of experience with complicated immigration matters, it’s important to get counsel’s help. An experienced attorney can advise you on the rebuttal documents and information to submit, prepare a persuasive legal brief, and submit the best possible response within 30 days.

Challenging a Revocation Notice

If USCIS agrees to sustain the petition approval – following review of the response to the NOIR –  it will issue a reaffirmation notice to the petitioner. After receiving the reaffirmation notice, the Consulate may accept the petition as valid, schedule a second interview, and issue the immigrant visa or K-1 visa.

If, however, USCIS decides the petition should not have been approved, it will issue a revocation notice to the petitioner. The petitioner may appeal an I-130 or I-129F revocation to the higher agency, or file a motion to reopen or reconsider with USCIS, within 15 days. If the petitioner does not challenge the revocation, the decision becomes final and the petition may no longer be used to continue the immigration process.

When the couple is already married, the petitioner may file a new I-130 petition, but must include evidence to rebut any claims that led to the NOIR or revocation notice in a prior petition. When the couple is engaged, filing a new K-1 fiancé(e) petition is not a cure-all solution because USCIS and the Consulate will be aware of problems in the prior petition. Getting married and filing an I-130 petition is a more effective, but not foolproof, course of action.

A petitioner who files a new I-130 or I-129F petition still has to overcome issues listed in a Notice of Intent to Revoke a prior petition approval, or address concerns raised by the U.S. Consulate.

If you receive a revocation notice, consult an immigration attorney to determine whether to file an appeal, a motion to reopen or reconsider, and/or a new petition, and help you pursue your options.

To learn more about the revocation process, read our other article, Notice of Intent to Revoke I-130 or I-129F Petition: Big Stumbling Block to Overcome in Marriage-Based Green Card Case.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Quinn Dombrowski